Information Note on the Court’s case-law No. 76
June 2005
Zawadka v. Poland - 48542/99
Judgment 23.6.2005 [Section III]
Article 8
Article 8-1
Respect for family life
Failure of the authorities to provide a non-custodial father assistance enabling him to effectively enforce his parental rights: violation
Facts: The applicant’s former partner gave birth to their common son in 1994. Two years later, during a stay of the applicant abroad, the mother moved out of the house where they were living together taking their son. In 1996, the District Court issued an interim order that the child should be placed with the mother. That same year the parents reached a friendly settlement, which stipulated, inter alia, that their son’s place of residence would be with his mother, but that the applicant would be able to spend every second weekend with his son at home. As the mother failed to comply with the settlement, the applicant requested that a court guardian assist him in meetings with his son. He also requested the courts to fine the mother and instituted criminal proceedings against her. The courts stayed the proceedings on the ground that the friendly settlement agreement had not specified the dates of the applicant’s access to his son and was therefore impossible to enforce. In 1997, after an altercation with the mother, the applicant took his son away from the mother (he nevertheless informed the courts and prosecution authorities about the incident). The District Court ordered him to return the child to the mother, but the applicant went into hiding with his son. In 1998, the courts limited the applicant’s parental rights, and later that year, completely deprived him of these rights for his continuing hiding with the child. The police subsequently took his son away from the applicant and handed him over to the mother. The applicant requested the courts to prevent the issue of a passport to his son as the mother intended to abduct him abroad, and again requested assistance in the enforcement of his access rights. He was informed that none of the court guardians had agreed to assist him in the arrangements for contact with his son. In 2001, the Regional Court re-instated the first of the 1998 judgments which gave the applicant some access rights, albeit of a limited nature. However, it stayed the enforcement of the orders concerning contact between the applicant and his son because he was unable to indicate his son’s place of residence. The proceedings are stayed.
Law: Article 8 – The Court has consistently held that this Article includes a right for a parent to have measures taken with a view to his or her being reunited with the child. However, the right of a non-custodial parent to have measures taken is not absolute. In the present case, following the signing of the friendly settlement between the parents and the applicant’s petition to be assisted by a court guardian to obtain compliance with the agreement, the courts stayed the proceedings and as a result the applicant did not obtain any assistance in respect of the enforcement of the settlement. In 1998, the domestic courts seriously limited the applicant’s parental rights for his abduction of the child and disrespect to the courts. However, the Court was not convinced that the applicant’s lack of cooperation with the courts could justify such a far-reaching limitation of parental rights, especially as there were no grounds to believe that contact with his son was detrimental for the child. Similarly, the Court did not find that the deprivation of the applicant’s parental rights was justified on the grounds pointed out by the domestic courts, that is, that to tackle the mother’s lack of cooperation and enforce his access rights the applicant should have availed himself of legal remedies. This was what the applicant had been trying to do since 1997, but his petitions had been ineffective. In 1998, when he again requested assistance in the enforcement of his access rights, he was informed that none of the court guardians had agreed to assist him. An unmotivated refusal of assistance of this type was incompatible with the State’s positive obligations under Article 8. Moreover, the applicant had also requested the courts to take steps that would prevent the mother from taking their son abroad, but a passport was apparently issued, as she later left Poland with the child. The Court’s view was that the authorities had failed to weigh carefully the conflicting interests of the mother’s right to travel and the applicant’s right of access to his child. In its overall assessment of the case, the Court noted that the applicant’s parental skills had never been seriously challenged, and concluded that in the circumstances of the case, which had resulted in the applicant permanently losing contact with his child, the domestic authorities had failed in their positive obligation to provide the applicant with assistance which would have made it possible for him to effectively enforce his parental and access rights.
Conclusion: violation (four votes to three).
Article 41 – The finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.
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This summary by the Registry does not bind the Court.
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